LAIRD v. COLVIN

Filing 21

OPINION AND ORDER granting 16 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. Remanding matter for further proceedings. Signed by Judge Donetta W. Ambrose on 2/8/18. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTIE J. LAIRD

)
) No. 17-115
)

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security1
OPINION AND ORDER

SYNOPSIS
Plaintiff filed an application for social security disability benefits and supplemental
security income. Plaintiff alleged disability due to mental and physical impairments, including
hearing loss. Plaintiff’s application was denied initially, and then denied following hearing
before an Administrative Law Judge (“ALJ”). The Appeals Council remanded Plaintiff’s case to
the ALJ for further consideration. A second hearing was held, and the ALJ again denied
Plaintiff’s claim; the Appeals Council denied her request for review. The parties’ Cross-Motions
for Summary Judgment are before the Court. For the following reasons, Plaintiff’s Motion will
be granted and Defendant’s denied, and this matter remanded for further proceedings.

OPINION
I.

STANDARD OF REVIEW
Judicial review of the Commissioner's final decisions on disability claims is provided by

statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3) 7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the

1

The caption as filed named Carolyn W. Colvin, then-Acting Commissioner.

1

court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
district court's role is limited to determining whether the record contains substantial evidence to
support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh the evidence of record; the court can only judge the propriety of the decision with
reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer
v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
67 S. Ct. 1575, 91 L. Ed. 1995 (1947).

Otherwise stated, “I may not weigh the evidence or

substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert
opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those
findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011
U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted). Nonetheless, I am not
required to read the ALJ’s opinion “in a vacuum.” Knox v. Astrue, 2010 U.S. Dist. LEXIS
28978, at *22 (W.D. Pa. May 26, 2010).

2

II.

THE PARTIES’ MOTIONS
A. Opinion of Dr. Haddad
Plaintiff contends that despite instructions from the Appeals Council to address the

limitations in the opinion of Dr. Haddad,2 an examining source, the ALJ failed to properly do so.
In particular, Plaintiff points out that the ALJ failed to include in the residual functional capacity
(“RFC”) Dr. Haddad’s opinion that Plaintiff was markedly limited in responding appropriately to
work pressures.
In addition to other limitations, Dr. Haddad opined that Plaintiff was markedly impaired
in responding appropriately to pressures in a usual work setting, and moderately impaired in
responding appropriately to changes in a routine work setting. He also opined to marked
impairment in carrying out detailed instructions and interacting appropriately with the public,
and moderate impairment with regard to detailed instructions and responding to changes in the
work setting. In the decision now under appeal, the ALJ gave Dr. Haddad’s opinion “significant
weight,” as “consistent with … her reported difficulties with stress as well as the mental status
examination….” The RFC included, inter alia, a limitation to routine and repetitive tasks
performed in a work environment free of fast-paced production requirements, and work isolated
from the public with only occasional interactions with supervisors and co-workers.
At the hearing, the ALJ first posed two hypotheticals to the vocational expert (“VE”),
describing an individual with the limitations that were included in Plaintiff’s RFC, including the

After Plaintiff’s first hearing before this ALJ, the Appeals Council remanded with, inter alia, the following
instructions:
[T]he hearing decision indicates that the claimant has [sic] maintaining social functioning; but social
limitations are not included in the RFC. … Dr. Haddad also opined that the claimant would have marked
difficulty with public interaction. Without explanation, the ALJ did not include this limitation in the RFC.
Further consideration is necessary.
2

3

limitations regarding routine and repetitive tasks and fast-paced production requirements. The
VE stated that such an individual could perform jobs in the national economy. The ALJ then
gave the same hypothetical, with the additional limitation that the individual has “a marked
impairment in responding appropriately to work pressures and usual work situations.”3 The ALJ
asked whether such a person could perform jobs in the national economy. The VE responded,
“No.”
It is possible that a restriction precluding fast-paced production work, or limitations to
routine and repetitive tasks, address a marked limitation on the ability to respond appropriately to
work pressures in a usual work setting. See, e.g., Hart v. Colvin, No. 13-5, 2013 U.S. Dist.
LEXIS 127209, at *28 (W.D. Pa. Sep. 6, 2013). It appears, however, that neither the ALJ nor
the VE considered the RFC to address such a marked limitation; the ALJ added the limitation to
her hypothetical, and the addition materially altered the VE’s response. Indeed, Defendant does
not suggest that the RFC adequately accounts for the limitation in question. As an evidentiary
matter, then, the effect of this particular limitation was dispositive.
An ALJ's RFC assessment must be accompanied by a satisfactory explanation of the basis
on which it rests. Absent such explanation, “the reviewing court cannot tell if significant
probative evidence was not credited or simply ignored." Frazier v. Colvin, No. 13-3742, 2015
U.S. Dist. LEXIS 96033, at *16-17 (E.D. Pa. June 30, 2015). Defendant contends that the ALJ
implicitly rejected a limitation regarding Plaintiff’s response to work pressures, and points to
evidence sprinkled throughout the decision that, it argues, contradicts the limitation – for
example, mental status examinations showing positive signs such as an ability to relate and neat
dress and grooming, poor compliance with and sporadic treatment for depression, and

The ALJ also added “a marked impairment interacting with the public,” but the initial hypotheticals, which
included the RFC limitations, already included a restriction that the person be “isolated from the public.”
3

4

cooperative behavior during a psychological evaluation. It is not immediately apparent either
that the evidence Defendant recites is inconsistent with a limitation on responding to work
pressures, or that the ALJ relied thereon in rejecting the limitations.4 Indeed, it is unclear
whether the limitation was omitted intentionally, and on what basis. Under the circumstances, the
lack of clarity regarding the ALJ’s approach to Dr. Haddad’s opinion inhibits proper review, and
remand is warranted.
A. Interpreter
Plaintiff contends that the ALJ erred when, at the second hearing, she declined to allow
Plaintiff’s hearing interpreter to enter the room. Plaintiff’s counsel avers that he repeatedly
requested that Plaintiff be permitted the use of an interpreter, and the opportunity to place the
issue of the interpreter’s presence on the record, and the Court refused. This, Plaintiff argues,
infected the proceeding both procedurally and substantively, and denied Plaintiff a full and fair
hearing. The Government responds that the ALJ thoroughly explained why Plaintiff did not
have work-preclusive limitations, and observed, inter alia, that medical records show that she is
proficient in lip-reading and communicates without difficulty.
It is well-settled that an ALJ has the basic obligation to ensure the development of a full
and fair record. The Defendant’s Program Operations Manual (“POMS”) states a policy to
provide an interpreter, or permit the use of one’s own qualified interpreter, “to any individual
requesting language assistance.” POMS DI 23040.001 DDS. Under this policy, “interpreter”
includes an individual who speaks sign language. Id. While POMS is not binding law, a
violation of the interpreter policy may be seen as a failure to provide a full and fair hearing.
Alvarez v. Comm'r of the SSA, No. 10-890, 2011 U.S. Dist. LEXIS 70066, at *11 (D.N.J. June

4

I note that the ALJ also discussed the agency psychological consultant, Kerry Brace, Psy. D., and her opinion that
Plaintiff had moderate limitations in her ability to respond appropriately to changes in the work setting.

5

28, 2011). Ultimately, the question is whether the lack of an interpreter caused Plaintiff a
disadvantage at the hearing. Id.
In order to find that an interpreter was needed based on the transcript of the
hearing, the misunderstandings must rise above the normal misstatements or
clarifications involved when even fluent English speakers converse. Having to ask
a question twice to get a clear answer, or to ask a question in a different way does
not itself suffice to show that the lack of an interpreter has disadvantaged a
claimant, since introducing an interpreter does not render all communication
flawless and brings its own communication challenges. Some greater problem of
understanding is needed to show that an interpreter was necessary.
Id.
The record contains a letter dated September 10, 2014, the day before Plaintiff’s hearing.
The letter, from Plaintiff’s counsel to the ALJ, states that a hearing interpreter would be present
at the hearing, “at the suggestion of Ms. Laird’s caseworker…who indicated that Ms. Laird has
severe difficulty hearing and comprehending.” Counsel represents, and this Court is bound to
accept, that the interpreter was present but the ALJ refused to permit the interpreter to enter the
room. Further, counsel represents that he repeatedly requested to go on the record to
memorialize the interpreter’s presence and Plaintiff’s request for the interpreter, but the ALJ
refused to commence recording. When asked by counsel whether her health provider indicated
that she “should have an interpreter at today’s hearing,” Plaintiff responded in the affirmative.
Plaintiff’s counsel stated, “I did just want to note for the record the question I asked regarding
the interpreter just involved the recommendation from her counselor from Mercy Behavioral
Health to have one. We do have one here today.” The ALJ responded, “And it’s already noted
in the file…and I’ve noted it today.” At the outset of the hearing, Plaintiff indicated that the ALJ
was speaking very fast, and she had trouble hearing women. The ALJ stated that she would
speak more slowly. Plaintiff’s testimony suggested that she was able to hear the ALJ from her

6

seat about ten feet away, in the quiet courtroom lacking background noise, but it took 100%
concentration.
The ALJ’s unexplained refusal to allow an interpreter, whose presence had been secured by
Plaintiff, requested by Plaintiff, and recommended by Plaintiff’s care providers, is concerning.
Unlike many cases remanded for lack of an interpreter, however, Plaintiff’s fully appropriate
responses to questioning suggest that Plaintiff did not mishear or misunderstand the questions
posed her. Further, Plaintiff’s testimony suggested that she could adequately hear the ALJ’s
questioning. Moreover, unlike cases involving deprivation of a foreign language interpreter,
there is no suggestion that Plaintiff had difficulty communicating her own testimony. In other
words, the presence of an interpreter, in this case, potentially bears only on input to Plaintiff
rather than output from Plaintiff. There is no suggestion that the Plaintiff was unable to
effectively, completely, and accurately communicate to the ALJ regarding her alleged disability,
present her case, and have her testimony understood. At present, Plaintiff does not specify any
particular instance tending to demonstrate that the lack of an interpreter actually prejudiced
Plaintiff. These factors, along with the fact that Plaintiff’s counsel was present throughout the
hearing, weigh against remand on this basis alone. On remand, however, should the ALJ deem
another hearing necessary, the presence of an interpreter should be reconsidered.

7

CONCLUSION
In conclusion, this matter will be remanded for further consideration of the opinion of Dr.
Haddid, consistent with this Opinion. An appropriate Order follows.

Dated:

2/8/18

BY THE COURT:

________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTY J. LAIRD

)
) No. 17-115
)

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
ORDER
AND NOW, this 8th day of February, 2018, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion is GRANTED and Defendant’s DENIED. This matter is
remanded for further proceedings consistent with the foregoing Opinion.
BY THE COURT:

___________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

9